The challenged design patents -- D618,677 is the one from the California case, D618,678 the one asserted in Apple's ITC complaint -- are very similar, and so are the substantial new questions of patentability affecting these patents. In fact, the USPTO points to the same three Japanese design patents as prior art references that were not considered during the original examination but over the combination of which the anonymous requester (almost certainly Samsung) deems Apple's D'677 and D'678 patents obvious: JP D1241638, JP D120442, and JP D1009317.

Samsung has repeatedly issued public statements according to which Apple has been or is suing it over rectangles with rounded corners, which is simply not true. Most recently Samsung said so in its reaction to this month's ITC ruling. If this were true, it would be child's play to invalidate these design patents. It wouldn't even require an obviousness theory: rectangles with rounded corners were not even novel when Apple filed for these design patents. But the anonymous requester's (again, that's most likely Samsung) obviousness theories, which the USPTO is now taking a closer look at, put the lie to the "rectangles with rounded corners" propaganda. According to the USPTO notice, "[e]ach of the three [Japanese prior art] references include a rectangular front face having a reactangular screen, a border space around the screen, and an oblong shaped speaker opening above the screen". When claiming that Apple asserts a monopoly over rectangles with rounded corners, Samsung doesn't even mention the speaker opening, which is however one of various elements of the relevant design patents -- and design patents are only infringed if all of their limitations (elements) are infringed. The anonymous reexamination request is not based merely on those common elements of all three references, but on three different combinations: each prior art reference serves as a primary reference and is then combined with one or two other references.

Reexamination of the patent from the ITC case was ordered on August 15 (last week's Thursday). The decision to reexamine the patent from the California case was made on Monday (August 19). Apple now gets to defend these design patents.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Subscribe To

Followers

Total Pageviews

Search This Blog

About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.